Liberalism and the campus rape tribunals

By Ross Douthat

The New York Times

September 13, 2017 11:15 AM

Last week Betsy DeVos, the secretary of education, announced that the Trump White House would be revising the Obama administration guidelines for how colleges and universities adjudicate accusations of sexual assault.

Opinion

There were protests outside her speech and spittle-flecked rants on Twitter, but overall the reaction felt relatively muted, at least by the standards of reactions to anything Trump-related or DeVos-driven.

Perhaps this was because enough people read The Atlantic, which chose last week to run a three-part series by Emily Yoffe on the sexual-assault policies in question. The series demonstrated exhaustively what anyone paying close attention already knew: The legal and administrative response to campus rape over the past five years has been a kind of judicial and bureaucratic madness, a cautionary tale about how swiftly moral outrage and political pressure can lead to kangaroo courts and star chambers, in which bias and bad science create an unshakable presumption of guilt for the accused.

It’s also a cautionary tale with specific implications for cultural liberalism, because it demonstrates how easily an ideology founded on the pursuit of perfect personal freedom can end up generating a new kind of police state, how quickly the rule of pleasure gives way to the rule of secret tribunals and Title IX administrators (of which Harvard, Yoffe notes in passing, now has 55 on staff), and how making libertinism safe for consenting semi-adults requires the evacuation of due process.

Rape and sexual assault are age-old problems. But the particular problem on college campuses these days is a relatively new one. For ideological reasons, the modern liberal campus rejects all the old ways in which a large population of hormonal young people once would have had their impulses channeled and restrained – single-sex dorms, “parietal” rules for male-female contact late at night, a general code emphasizing sexual restraint. Meanwhile for commercial reasons as well as liberationist ones, many colleges compete for students (especially the well-heeled, full-tuition-paying sort) by winkingly promising them not just a lack of adult supervision but also a culture of constant partying, an outright bacchanal.

This combination, the academic gods of sex and money, has given us the twilit (or strobe-lit) scene in which many alleged sexual assaults take place – a world in which both parties are frequently hammered because their entire social scene is organized around drinking your way to the loss of inhibitions required for hooking up. It’s a social world, just as anti-rape activists and feminists have argued, that offers an excellent hunting ground for predators and a realm where far too many straightforward assaults take place. But it’s also a zone in which it is very hard for anyone – including the young women and young men involved – to figure out what distinguishes a real assault from a bad or gross or swiftly regretted consensual encounter.

This reality made many colleges shamefully loath to deal with rape accusations at all. But once that reluctance became a public scandal, the political and administrative response was not to rethink the libertinism but to expand the definition of assault, abandon anything resembling due process and build a system all-but-guaranteed to frequently expel and discipline the innocent.

A few years ago the injustice of this approach was defended on various grounds. Anti-rape activists suggested that false accusations of sexual assault were as rare as unicorns, that alleged victims almost never lied or exaggerated or made mistakes of memory and judgment. Reasonable center-left types argued that broadening rape’s definitions and weakening men’s rights could instill a necessary sort of fear, a kind of balance of terror between male sexual privilege and a female right to accuse and be believed. A few of my fellow social conservatives agreed: If unreasonable rules and unfair proceedings discouraged men from pursuing promiscuity and treating women badly, so much the better for both the women and the men.

None of these defenses looked persuasive once the new order took hold. False rape accusations are rare in many contexts, yes, but bad systems generate bad cases, and a system designed to assume the guilt of the accused has clearly encouraged dubious charges and clouds of suspicion and pre-emptive penalties unjustly applied.

Meanwhile any balance of terror, as Yoffe points out in the third installment of her series, has turned out to be racial as well as sexual, since it is a not-much-talked-about truth that minority students seem to be accused of rape well out of proportion to their numbers on campus. So setting out to strengthen women’s power relative to men has created a cycle of accusation and punishment whose injustices probably fall disproportionately on black men.

As for whether the unjust system might nonetheless have some sort of remoralizing effect on male sexual behavior, I stand by what I argued a few years ago. Offering young men broad sexual license regulated only by a manifestly unfair disciplinary system imbued with the rhetoric of feminism seems more likely to encourage a toxic male persecution complex, a misogynistic masculine reaction, than any renewed moral conservatism or rediscovered chivalry.

Or to put it in the lingo of our time: That’s how you get Trump.

Having gotten him, liberals lately have been arguing that any madness or folly or ideological mania on their own side pales in comparison with the extremism at work in Trump-era conservatism. This argument has force: With Trump in the White House the know-nothing side of the right has much more direct political power at the moment than the commissars of liberalism.

But it is also important to recognize that the folly of the campus rape tribunals is not just an extremism isolated in the peculiar hothouse of the liberal academy. The abandonment of due process on campus was encouraged by activists and accepted by administrators, yes, but it was the actual work of the Obama White House – an expression of what a liberalism enthroned in our executive branch and vested with the powers of the federal bureaucracy believed would defend the sexual revolution and serve the common good.

It wasn’t a policy from the liberal fringe, in other words. It was liberalism, period, as it actually exists today and governed from the White House until very recently. And any reader of The Atlantic who experiences a certain shock at what has been effectively imposed on college campuses in the name of equality and social justice will also be experiencing a moment of solidarity with all of those Americans who prefer not to be governed by this liberalism, and voted accordingly last fall.